2024-28121. Proposed Settlement Agreement, Federal Insecticide, Rodenticide, and Fungicide Act

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Environmental Protection Agency

1. [EPA-HQ-OGC-2024-0251; FRL-12440-01-OGC]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed settlement agreement and request for public comment.

SUMMARY:

Consistent with Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency (March 18, 2022), EPA is giving notice of and seeking comment on a proposed settlement agreement for In re Center for Biological Diversity, No. 21-1270 (D.C. Circuit) and Center for Biological Diversity v. Environmental Protection Agency, No. 23-1329 (D.C. Circuit). Defendant-Intervenors—who represent the registrants for products contain cyantraniliprole—do not oppose this proposed settlement agreement.

DATES:

Comments are due by January 2, 2025.

ADDRESSES:

Please submit your comments online at https://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All comments should include the Docket ID (EPA-HQ-OGC-2024-0251) for this action. Submitted comments will be posted without change to https://www.regulations.gov, including any personal information provided. For detailed instructions on commenting, see the “Public Comment on the Proposed Settlement Agreement” heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Jori Reilly-Diakun (Pesticides and Toxic Substances Law Office, Office of General Counsel, U.S. Environmental Protection Agency), [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Stipulated Settlement Agreement

The official public docket for this action contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the OEI Docket is [phone].

The electronic version of the public docket for this action also contains a copy of the proposed settlement agreement. The electronic version of the public docket is available at https://www.regulations.gov/​docket/​EPA-HQ-OGC-2024-0251.

II. Background on the Proposed Settlement Agreement

This proposed settlement agreement follows petitions for review in the United States Court of Appeals for the District of Columbia (D.C. Circuit) of EPA's decisions granting pesticide registrations and amendments to those registrations under the Federal Insecticide, Rodenticide, and Fungicide Act (FIFRA) for products containing the active ingredient cyantraniliprole.

On June 30, 2017, the D.C. Circuit addressed the initial petition for review and remanded the registration decisions to EPA without vacatur for EPA to address its obligations under the Endangered Species Act (ESA). Center for Biological Diversity v. Environmental Protection Agency, 861 F.3d 174 (D.C. Cir. 2017). In 2021, Petitioners filed a writ of mandamus with the D.C. Circuit, seeking to compel action by EPA in accordance with the Court's 2017 order. On November 22, 2022, the D.C. Circuit held that EPA had unreasonably delayed in complying with its 2017 order and ordered EPA to complete effects determinations for cyantraniliprole and replace its previous registration orders with orders consistent with the ESA by September 2023. In re Center for Biological Diversity, 53 F.4th 665 (D.C. Cir. 2022).

In September 2023, EPA completed its final biological evaluation for cyantraniliprole and initiated ESA section 7 consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, before granting registrants' requests to amend the registrations for products containing cyantraniliprole. See EPA-HQ-OPP-2011-0668. EPA filed a Notice of Completion with the D.C. Circuit in In re Center for Biological Diversity on October 4, 2023. Petitioners filed a new petition for review challenging EPA's September 2023 registration amendments. Center for Biological Diversity v. Environmental Protection Agency, No. 23-1329 (D.C. Circuit).

This proposed settlement agreement would resolve any remaining claims against EPA in these cases. In the proposed settlement, EPA would agree to implement any final Biological Opinion for cyantraniliprole no later than 12 months from the date that each Service issues a final Biological Opinion or the deadline set by each Service for implementing its final Biological Opinion—whichever is earlier—with several options for extension, if appropriate.

III. Public Comment on the Proposed Settlement Agreement

EPA will accept written comments on the proposed settlement until January 2, 2025 from anyone who is not a named party to the litigation in question. EPA or the U.S. Department of Justice (DOJ) may decide to withdraw consent to enter the proposed settlement agreement if the comments indicate that such consent is inappropriate. However, the terms of the proposed settlement agreement will be affirmed unless EPA or DOJ so decide based on the comments. ( print page 95209)

Please submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0251, through https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. EPA may publish any comment received to its public docket. Do not submit any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions ( e.g., audio, video) must be accompanied by a written comment. EPA will consider the written comment to be the official comment, and it should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( e.g., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets. For additional information about submitting information identified as CBI, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document.

If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Use of the https://www.regulations.gov website to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment.

Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

Dated: November 25, 2024.

Randolph L. Hill,

Associate General Counsel.